Defense asks jury to acquit 20-year-old man of charges in Richmond High School gang rape case

MARTINEZ -- Asking jurors to acquit his 20-year-old client of all charges in the Richmond High gang rape case, a defense attorney Wednesday described defendant Marcelles Peter as a witness to the "heinous" attack and not an active participant.

"Some (people at the crime scene) saw him, some didn't see him, but no one recalled him doing anything," Peter's attorney Gordon Brown said in his closing argument Wednesday.

"To get to 'acting in concert' and the 'aiding and abetting,' he had to have done something," Brown said. "It's almost like he was the invisible man there, see but not seen, unheard."

Prosecutor John Cope argued that Peter is guilty as an active participant and as an aider and abettor in the violent Oct. 24, 2009, attack on a 16-year-old sophomore girl in a dark campus courtyard during the school's homecoming dance. Two men have already been convicted of gang rape; another two are awaiting trial on lesser sexual assault charges.

Peter, of Pinole, and 22-year-old Richmond resident Jose Montano each face life in prison if convicted as charged of rape in concert, oral copulation in concert, penetration with a foreign object in concert, and charge enhancement that great bodily injury was done to the victim. The co-defendants each have their own jury, both of which will start deliberating Monday.

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Attorneys will give closing statements Thursday in the case against Montano.

On Wednesday, Cope went through all the damning evidence against Peter, including a police interrogation video in which Peter demonstrated how he touched the victim's private area just before Montano raped her, and that his DNA was found in a used, discarded condom. One witness said that the day after the rape, Peter admitted to inappropriately touching the victim. Another testified that Peter told him that he had taken pictures of the assault with his cell phone.

The girl was attacked in a dark campus courtyard after she left a homecoming dance and began drinking alcohol with a group of men and teen boys. Police found her nearly three hours later, mostly nude and nearly unconscious, draped over a picnic table support beam. The girl had sustained severe head trauma and had a near-fatal blood-alcohol level; she would likely have died out there if she hadn't gotten medical attention when she did, a doctor testified at the trial.

The predominate DNA profile found on the used condom belonged to defendant John Crane, who is awaiting trial, and Peter's DNA was secondary, carry-over DNA, Brown said.

In his rebuttal, Cope told the jury not to confuse carry-over DNA with transferred DNA. Peter's cellular material provided DNA in both the sperm and nonsperm fractions tested.

"In all explanations you can think of, Mr. Peter was involved in a sexual assault," Cope said.